ALTERNATIVES TO ADJUDICATION(ALTERNATIVE DISPUTE RESOLUTION)
Indian judiciary is one of the oldest judicial systems in the world. This is a renowned fact but nowadays it is a well-known fact that the Indian judiciary is becoming inefficient to deal with a pending case. The reason for the pending cases is that the population of India being vast the judiciary tends to fall back on providing speedy justice. One more fact that a slow justice provided is the idea of justice hurried is justice buried. With a growing time of development and a rapid clash of cases in the court need to be filtered through a stream. Today when about 3.3 crore cases are pending in court which means that at least five people are directly involved in litigation. This scenario exists even after the setting of more than a thousand fast track courts that already settled millions of cases the problem is far from being as pending cases are still piling in. Solving cases not only include solving cases, it actually means providing justice including, the protection of the innocent, punishment of guilty, and the satisfactory resolution for the disputes in order to overcome the much-criticized delay in the justice delivery, the adoption of alternative dispute mechanism was introduced in India.
ALTERNATIVE DISPUTE RESOLUTION.
Alternative Dispute Resolution is a mechanism that acts as a substitute for litigation. This mechanism is capable of providing a substitute for the conventional methods of resolving disputes. It offers to resolve all types of matters including civil, commercial, industrial and family where people are being able to start any type of negotiation and reach the settlement. It arose from the idea of the overfull hands of the courts to deliver justice to all. ADR provides a winning at both ends situation parties with issues that can be declared out without suffering throughout the trials are advantage by the mechanism of area.
ADR uses a neutral third party who helps the parties to communicate discuss the differences and resolve the dispute. It is a method that enables individuals and groups to maintain cooperation, social order and provides the opportunity to reduce hostility.
Alternative Dispute Resolution or external dispute resolution typically denotes a wide range of dispute resolution process and techniques that act as a means for disagreeing parties to come to an agreement short of litigation, a collective term for the ways that parties can settle disputes with the help of a third party. ADR is now increasingly being adopted as a tool to settle disputes alongside the court system itself.
HISTORY AND DEVELOPMENT OF ADR:
Different forms of ADR have been in existence for thousands of years. However,the first arbitration act was passed in the year 1698 under Willam III.
The roots of Alternative Dispute Resolution begin when mediation and arbitration where used to settle disputes between kingdoms in the ancient Middle East. The practice of ADR can be found in bushmen of the KaliharI desserts the Hawaiian islands and some areas of Nigeria in the year 960 BC but in those days the disputes were resolved by taking the biblical wisdom of Solomon into account and also people had wide range of religious faith.
Further, the Alternative Dispute Resolution started growing in the field of modern civilization which, they used to settle the disputes in business, land disputes, and in the international relations. However, some of the political conflicts among the countries were also resolved with the help of the third country which falls under the category of Alternative Dispute Resolution without going to the litigation in the court.
Marking the Alternative Dispute Resolution during the revolution of industries, the ADR was used in the labour management disputes where the disputes that involved labour and employment relation to give the equal employment opportunity was solved by the alternative dispute resolution.
During the late 1980 and early 1990, Alternative Dispute Resolution became one of the most traditional methods to solve disputes in the United States because the conventional litigation becomes too expensive and too slow for many civil lawsuits to bring the dispute to an end in such a case the alternative dispute resolution had a Peking growth.
During the early 2000 and in the 21st-century A.D. ADR takes the form of modern institutionalization because it has gained widespread acceptance in both the general public and the legal profession in recent years. In these recent days, courts now require some parties to resolve Alternative Dispute Resolution of some types usually mediation before permitting the parties cases to be tried. For today's date, Alternative Dispute Resolution is been one of the greatest ways to get resolved the dispute without moving into litigation which is a long process.
HISTORY OF ADR IN INDIA:
The history of Alternative Dispute Resolution may be traced back to the age-old system of village panchayat which was prevalent in ancient India. The decision of the punches while sitting collectively as Panchayat command great respect because of the popular belief that a where the embodiment of the voice of God and therefore had to be accepted and obey unquestionably in course of time this mode of the divine administration of justice through panch panchayat underwent radical changes with the changing pattern of society and the growth of human knowledge and civilization. The main aim of the panchayat system was to maintain a friendly and smooth relation between the villagers and to uphold the dispute really went to court the system then faded with the time with the biased and operative rule of the panchayat system. This area uses the principle of natural justice in consonance with the rule of law to create a favourable atmosphere of a Win-Win situation
Alternative Dispute Resolution is in India was founded on the constitutional basis on Article 14and article 21 which deal with the equality before law and right to personal liberty respectively, these articles present in part III of the constitution of India which was the fundamental rights of citizens of India.
Various kinds of Alternative Dispute Resolution mechanism in India:
Arbitration is one of the various methods that together are referred to as an Alternative Dispute Resolution as suggested by the name the idea behind methods of ADR is to provide an alternative to filing a lawsuit and going to the court which is the traditional methods of resolving the dispute. Arbitration in the law is a form of Alternative Dispute Resolution specifically address litigation with the parties to dispute agrees to submit their respective positions to an agreement or hearing to a neutral third party the arbitrators for arbiters for the resolution.
Arbitration in India during the 20th century was governed by the Indian arbitration act 1859 with limited application and the second schedule to the code of civil procedure. Further, the Arbitration Act, 1859 was replaced by the Arbitration Act, 1940. The Arbitration act, 1940 was again replaced by the Arbitration and Conciliation Act, 1996 which by the virtue of its section 85repealed the earlier act of 1940.
The Arbitration Act, 1996 was introduced in the view of growing concept complexities of modern commercial transactions in the wake of globalisation of economy which necessitated an effective redressal mechanism for speedy settlement of domestic as well as the international commercial dispute so as to ensure uninterrupted flow of trade and commerce.
Definition:According to Section 2(1) (a) defines arbitration.,the arbitration act of 1940 did not contain the definition of the term arbitration the word arbitration as defined on the present at connotes the same meaning as contained in Article 2 A of the model law UNCITRAL
Conciliation, another alternative dispute resolution process whereby the parties to the dispute agreed to utilise a service of a conciliator who then meets with the party separately in an attempt to resolve the differences. conciliation is different from arbitration. In the conciliation process, in and on itself has no legal standing and the council later usually has no authority to seek evidence of call witness. Usually, the conciliator makes no decision and makes no awards. In simple words, conciliation is a type of Alternative Dispute Resolution where the parties are presented for arguments in front of a third neutral party (one or more than one based on an agreement of the parties). It is a non-judicial power against arbitration which may be in a judicial or non-judicial form.
The Arbitration and Conciliation Act, 1996 as the name itself suggests these two types of proceedings domestic arbitration and conciliation proceedings whereas section 61 to 81 of the act contains the clauses with regard to conciliation.
Definition: Conciliation as defined in the asbury laws of England, "is a process of persuading parties to reach an agreement and is plainly not arbitration nor the chairman of a consolation board and arbitrator."
Mediation is another of the methods of Alternative Dispute Resolution available to the parties. Mediation is essentially a negotiation facility, facilitated by the neutral third party and like arbitration which is the process of ADR somewhat similar to the trial. Mediation doesn't involve decision making by the neutral third party. ADR procedures can be initiated by the parties or maybe compelled by legislation or the courts of laws in the contractual terms. Mediation is being increasingly used in the commercial sectors at the National and international level
Definition: The process of Mediation is where the neutral third party the mediator assist two or more parties in order to help them to negotiate an agreement with concrete effects on a matter of common interest, 'lato senus' is any activity in which an agreement on whatever matter is research by an impartial third party usually a profession in the common interest of parties.
The establishment of Lok Adalat has been one of the most significant moments as a part of conflict management and judicial reforms and it has become a global necessity. Undoubtedly, Lok Adalat concept and philosophy is an innovative Indian contribution to world jurisprudence. It has a very deep and along its not only in the recorded history but also in the prehistoric Era it has been proved to be a very effective alternative to litigation. Lok Adalat is one of the familiar ADR, for which it has been playing an important role in the settlement of disputes. Literally, the meaning of Lok Adalat is the people's court. Lok Adalat is established by the government to settle disputes through conciliation and compromise. The first Lok Adalat was held in Gujarat in 1982.
Lok Adalat is a boon to the litigant public where they get the dispute settled fast and free of cost. The jurisdiction of Lok Adalat is not confined to specific categories of minor matters for texting to any matter.
Disputes like partitions suits, damages and matrimonial cases can also be easily settled before the Lok Adalat as a scope for compromise to an approach of given take is high in this case.
Definition:Lok Adalat is defined as a forum where a voluntary effort, aimed at bringing about a settlement of a dispute between the parties is made through consolatory and persuasive means.
ADR: NEED OF AN HOUR AND ITS IMPORTANCE:
To deal with the situation of pendency of cases in the courts of India, ADR places a significant role in India by its assorted techniques. Alternative Dispute Resolution mechanism provides scientifically developed techniques to the Indian judiciary which helps in reducing the burden on the court.
Alternative Dispute Resolution is a need of an hour because the problem is further compounded when there is a lack of discipline in the litigation process and judicial mechanism finds it difficult to cope up with the enormous caseload particularly in modern technology and economically well-advanced society. Litigation is a primarily means of resolving dispute when it fails to meet the needs of people there is an obvious need to search for a new alternative method of dispute resolution which is making the ADR a very efficient way to resolve and restore a relationship in a dispute.
ADR is important because the disputes between parties are settled in a very amicable manner so that the reputation and the privacies of the parties involved are protected in most of the options.
In the court of law, litigation goes prolonged, but in this Alternative Dispute Resolution is less time consuming where people resolve disputes in a short period when compared to that of litigation and it is also cost-effective. It says it saves a lot of money. If one undergoes any form of Alternative Dispute Resolution, people are free to express themselves without any fear of the court of law so that they can reveal the true facts without disclosing them to any court.
Because justice is not executed speedily men persuaded themselves that there is no such thing as justice. But considering Alternative Dispute Resolution this fact cannot be accepted because the justice is provided as faster as possible. It is said, 'delay and delay means negating the accessibility of justice' in true terms to the common man. The delay in the accessibility of justice can be obstructed by ADR.
At the problem of overburdened courts has been faced all over the world new solution were searched. Tribunals were the answers to the search. However, the fact of the matter is that even after the formation of so many tribunals the administration of justice has not become speedy. Thus, it can be truly and safely said that the solution lies somewhere else. All over the globe, the recent trend is to shift from litigation towards the Alternative Dispute Resolution. It is a very practical suggestion, if ADR is implemented then the matter to dispute will be settled without any delay in time and none can be restrained from seeking justice.
1.Laws relating to arbitration and conciliation in India, fourth edt, by Dr.N.V.Paranjapee
2. Microsoft Word - Nishita - ADR.doc (fdrindia.org)
6. IMPORTANCE OF ALTERNATIVE DISPUTE RESOLUTION | RACOLB LEGAL
Submitted by A.Amrittha
4th year BA.,LLB.,
Government Law College, Vellore.